Immigration Judicial Review of Denied I-129 and I-140

Immigration Judicial Review of Denied I-129 and I-140 Petitions

When USCIS denies an employment petition—Form I-129 (e.g., H-1B, L-1, O-1) or Form I-140 (EB-1/EB-2/EB-3)—the petitioner (usually the employer) can seek federal court review under the Administrative Procedure Act (APA). The court does not “re-adjudicate” eligibility; it decides whether USCIS acted arbitrarily, capriciously, contrary to law, or without substantial evidence on the administrative record. This process includes the review of denied I-129 and I-140 petitions.

Do you have to appeal to AAO first?
Not always. Many APA suits proceed without an AAO appeal, though an AAO brief can sharpen issues and build the record. Choose strategically: if timing is critical (cap season, expiring status), filing in district court may be faster; if the record has fixable gaps, AAO reconsideration may help.

Jurisdiction & limits

• Courts may review legal and factual errors in petition denials, which often include issues that arise during the review of I-129 and I-140 petitions.
• The bar in 8 U.S.C. § 1252(a)(2)(B)(ii) blocks review of purely discretionary judgments, but most I-129/I-140 denials turn on statutory eligibility (a reviewable question).
• Consular nonreviewability generally doesn’t apply; you’re challenging a USCIS petition decision, not a visa refusal.
• Statute of limitations: typically 6 years from the final agency action.

Procedure & remedies
Cases are usually resolved on cross-motions for summary judgment; the “trial” is the paper record (forms, expert letters, evidence USCIS had). The common remedy is vacatur and remand—the court sets aside the denial and orders USCIS to re-adjudicate using the correct standard. Courts seldom order outright approval, but strong records and clear legal errors can prompt approval on remand. Successful review of denied I-129 and I-140 petitions can lead to favorable outcomes.

Record strategy
Because courts stick to the existing record, front-load key evidence:

• I-129 (H-1B/L-1/O-1): specialty-occupation analyses, end-client letters/SOWs, itineraries, organizational charts, expert opinions, wage/LCA alignment.
• I-140: regulatory criteria mapping (EB-1A/EB-1B), Matter of Dhanasar for NIW, ability-to-pay proofs (tax returns, payroll), and credentials equivalency. Preparing for the review of denied I-129 and I-140 forms usually encompasses these elements.

Mandamus vs. APA

• Delay cases: use mandamus/APA “unreasonable delay” under TRAC factors.
• Denial cases: use APA arbitrary-and-capricious review (mandamus won’t compel an approval).

Practical tips
File in a venue with strong administrative-law precedent; anticipate mootness (USCIS may reopen after suit); preserve standing (the petitioner employer); and draft a clear issues list tying every exhibit to the regulatory elements. A precise, record-anchored complaint maximizes your odds of a remand and fair re-adjudication, especially in the review process for denied I-129 and I-140 petitions.